FPSLREB Decisions

[1]   This decision follows a hearing held into two matters referred to the Board by Michelle McCormack ("the grievor"), currently employed at Industry Canada (CO-3), and by the Professional Institute of the Public Service of Canada (PIPSC).

[2]   The first matter (Board file 147-2-118) is a section 34 application in which PIPSC requests that the Board declare that the grievor was a member of the Audit, Commerce and Purchasing (AU) bargaining unit and governed by the collective agreement applicable to the Commerce group (Exhibit P-1) for the period from August 16, 1999 to August 2000.

[3]   The second matter (Board file 166-2-31380) is a grievance referred to adjudication in which the grievor seeks acting pay for the same period (August 16, 1999 to August 2000) under the AU group collective agreement.

[4]   The employer is of the view that, for the period at issue, the grievor occupied a position of Foreign Service (FS) Officer, was governed not by the Commerce (CO) group collective agreement but by the Foreign Service (FS) group collective agreement, which did not have an acting pay provision at the relevant time, and therefore the grievor is not entitled to acting pay.

[5]   On the other hand, PIPSC and the grievor are of the view that it is at the request of the employer that the grievor performed CO duties and therefore, at the relevant time, was in the CO bargaining unit and was entitled to the application of the CO collective agreement, including its acting pay provision.

[6]   The bargaining agent, the Professional Association of Foreign Service Officers (PAFSO), was given third party status. Its representative was present for the first part of the hearing, following which he informed the Board that he did not wish to attend for the rest of the hearing.

[7]   The relevant provisions of the Public Service Staff Relations Act (PSSRA) and the relevant collective agreement are reproduced in Annex "A" of this decision.

Facts

[8]   At the outset, all three representatives made opening statements, which can be summarized as follows.

[9]   The grievor's representative stated that the duties carried out by the grievor evolved from FS duties to CO (AU) duties when she began working in the joint project of the Department of Foreign Affairs and International Trade (DFAIT) and Industry Canada (IC) in August 1999. He acknowledged that at the time she carried out FS duties (i.e. before August 1999), she was not entitled to acting pay under the FS group collective agreement. However, starting August 1999, she carried out CO (AU) duties. She was not on an FS rotational assignment. The facts of her situation are different from those of the Bunka (Board file 166-2-30856) and Leduc (Board file 166-2-28701) decisions. According to the grievor's representative, the employer should not be allowed to hide behind its failure to classify her position at Investment Partnership Canada (IPC) - eventually, it was classified CO-3 - nor should it be allowed to hide behind its own negligence in failing to classify in a timely manner to claim that the Board cannot look at the duties the grievor carried out in August 1999.

[10]   In turn, counsel for the employer stated that employees occupying FS positions were not entitled to acting pay before August 2000. The Bunka and Leduc decisions were determinative of the present issue. According to counsel, the grievance is without merit because in August 1999, the grievor occupied an FS position, the FS collective agreement did not provide for acting pay, her assignment could be viewed as rotational and her bargaining agent was PAFSO at the relevant time. Counsel added that the grievor was appointed on January 29, 2001, at IC, and that her bargaining agent became PIPSC and that this was the moment when she lost her status as an FS officer.

[11]   In reply, the grievor's representative pointed out that the employer gave the grievor a job description effective August 1999, and that the position she held was classified at the CO-3 group and level effective July 1999. PIPSC is of the view that it was bound to represent the grievor when she approached it in April 2001, and it was entitled to the grievor's union dues, as well.

Evidence

[12]   The evidence given by the grievor can be summarized as follows.

[13]   Starting in 1989, she occupied an FS-1 position at DFAIT. Later, in September 2000 (Exhibit P-11), her job at DFAIT was reclassified FS-2, starting December 1998. In August 1999, she moved to a position at IPC. In January 2001, after having been approached by the Director of Operations in May 1999, she was deployed to a CO-3 position at IC. IPC was a joint venture of DFAIT and IC; IC contributed 19 positions to this venture, and DFAIT five positions.

[14]   Upon starting at IPC in August 1999, the grievor found an organization undergoing significant changes; her responsibilities increased, her duties were not the duties of an FS position, she did not have a job description, nor were the duties classified. IPC undertook classifying its positions.

[15]   A "Human Resources Action Request" form (position no. 11042) to classify the grievor's position as CO-3 was completed on September 11, 2000, by Alan Virtue, the Deputy Executive Director, and it indicated that the effective date of creation of this position should be July 1, 1999 (Exhibit P-15). (It is to be noted that on the form, the substantive level is said to be FS-1. This is because at the time the request was made, her job had still not been classified CO-3. In the end, it was classified CO-3, retroactive to July 1999.)

[16]   It was eventually classified CO-3 effective July 1, 1999; that is, preceding her arrival at IPC on August 16, 1999, but she did not receive the CO-3 salary from August 16, 1999 to August 2000. Drafts of her job description (Exhibits P-16 and P-17) were produced. (It is to be noted that, on the basis of that information, her job was confirmed to be CO-3, effective July 1999.) The grievor's colleague, George Woods, sought a reclassification (Exhibit P-18) of his position to CO-3 as well.

[17]   The grievor was told that until the classification of her position was confirmed, she could not receive acting pay. She asked for acting pay on the basis of explanations given by a certain Karla Piecka.

[18]   The grievor denied that she was on a rotational assignment as an FS officer and enumerated the reasons why she was not on a rotational assignment. She testified that she was not given a written notice that she was going on a rotational assignment at IPC (Exhibit P-23), nor was she told it was for a specified period, nor was there any mention of her return to DFAIT. It was understood that the position at IPC would be her substantive position.

[19]   The grievor started receiving the CO-3 salary retroactive to September 2000, more precisely on August 31, 2000, according to her pay card (Exhibit E-1). She did not receive written confirmation of the classification being retroactive to July 1999.

[20]   Counsel for the employer interjected that the grievor was assigned on August 16, 1999 to IPC within the framework of a rotational assignment as an FS officer and that the FS collective agreement did not allow her to get acting pay from August 1999 to August 2000. Counsel admitted, however, that there was no document to establish this rotational assignment.

[21]   In reply, the grievor pointed out that the Deputy Executive Director, Alan Virtue, supported her testimony by signing the "Human Resources Action Request" (Exhibit P-15) that clearly stated she had been carrying out CO-3 duties since her arrival in August 1999.

[22]   At this point, counsel for the employer stated that there was no dispute that starting August 16, 1999, the grievor carried out the duties of a CO-3 position. She added that the reason the grievor was not getting the CO-3 salary was that she was an FS officer in a CO-3 position and that the FS collective agreement had no premium for acting pay.

[23]   Later in the course of her testimony, the grievor acknowledged that in October 2000, in her action request for acting pay, she checked off "rotational" and "FS-2" (Exhibit P-19) as her group and level, and that the Executive Director, Alan Virtue, approved her request. She did so because she "had to put something down and it was not clear what her position was until the CO-3 classification was approved."

[24]   The grievor did not receive an official notice of the classification of her position, but she did come upon a confirmation, a memorandum from Monique Séguin-Doré (Exhibit P-25), and it stated that her position was CO-3 effective July 1, 1999.

[25]   The grievor's representative produced two more witnesses: David Mullen, Senior Account Executive (CO-3), IPC, and George Woods, currently employed at DFAIT. They both confirmed the state of flux that existed at IPC in 1999, in matters of human resources organization and more particularly the lack of proper job descriptions. George Woods' position was reclassified CO-3 retroactively to July 1999.

[26]   The evidence produced by the employer follows.

[27]   Louise Rousseau's testimony can be summarized as follows.

[28]   She has been employed for 13 years at DFAIT. She occupies the position of Assignment Officer (FS-2) in the Assignment Division of Human Resources. She participates in the management of FS assignments abroad and at Headquarters for 15 officers.

[29]   "Chapter 4 - Rotationality and Assignments" (Human Resources Management Manual, DFAIT) (Exhibit E-2) governs assignments. FS officers' positions are rotational (section 4.3.1) (Exhibit E-2); that is, their incumbents are required to serve at any location in Canada and elsewhere, as determined by the Department. Rotationality is a condition of employment. Such positions remain rotational even if the incumbent occupies the position at Headquarters. Assignments are not subject to appeal (Exhibit E-6).

[30]   DFAIT contributed five positions to the joint venture (IPC) with IC. Their salaries come out of the DFAIT budget.

[31]   Assignments are put in writing. Documentation is prepared. If the assignment is in Canada, an e-mail from the assignment officer is sent to the FS officer.

[32]   Louise Rousseau stated that the grievor ought to have been informed in writing that she was being assigned to IPC; when an FS officer is assigned to a different classification group, for example CO, the assignment is also confirmed in writing.

[33]   According to Louise Rousseau, despite the lack of written assignment, it can be said that the grievor was assigned to IPC, just as were other DFAIT FS officers (D. Butler; B. Casey).

[34]   According to Louise Rousseau, the "Human Resources Action Request" form (Exhibit P-15) for the classification of the position held by the grievor at IPC confirms that the grievor had remained in an FS position. Louise Rousseau does not dispute the fact that the position held by the grievor was "reclassified CO-3" and that this was confirmed in writing (Exhibit P-25) and sent to the grievor's supervisor on October 5, 2000. The reclassification date set out in the document is July 1999 for the position EXT-11042, which is the position occupied by the grievor at IPC. The FS position held by the grievor bore the number 00003700 (Exhibit E-7). Louise Rousseau argued that despite these facts, the grievor herself was classified as an "FS officer" and that until January 29, 2001, when she transferred out of IC, she was on the DFAIT payroll (Exhibit E-1) and was only entitled to her FS-2 salary until August 2000, then the new FS collective agreement allowed her to receive acting pay. Even if Alan Virtue approved the grievor's request (Exhibit P-19) for acting pay, the request was not "actioned" since, at the relevant time, the FS group collective agreement did not allow acting pay for FS officers. However, when the FS group collective agreement changed later on and allowed for acting pay, the grievor was paid acting pay from August 2000 to January 2001. Louise Rousseau acknowledged that, had the grievor received a letter informing her that she was appointed to the position EXT-11042 that she held at IPC, she would have ceased being in an FS position starting in July 1999.

[35]   The employer's last witness, Guy St-Jacques, Director General, Personnel, DFAIT, testified that IPC was a joint creation in 1997 of DFAIT and IC, with a view to promoting efforts to attract investments. He confirmed that DFAIT contributed five positions to this venture and that the Department considered it a good way for FS officers to acquire experience. He could not testify on the particular details regarding the grievor's situation. Guy St-Jacques added that the five positions now at IPC are CO "administratively", although they were "managed" as FS.

Arguments

[36]   The argument of the grievor's representative can be summarized as follows.

[37]   Despite the lack of proper documentation, the evidence is clear that the grievor was appointed in August 1999 to position no. 11042 and that it was a CO position. She could not produce a certificate of appointment through no fault of her own, but de facto she was appointed. However, her situation not having been clarified in a timely manner, she filed her grievance within the framework of clause 45:08 - "Acting Pay".

[38]   The evidence is clear (witnesses and documentary evidence, such as Exhibit P-12) that there was a certain degree of disorganization when she joined IPC and that there was a need and a plan to clarify the muddy situation (Exhibit P-15). Exhibit P-25 is evidence that the position she occupied was at the CO-3 group and level effective July 1999. This memorandum, it must be assumed, was not brought to the attention of the ADM, Human Resources, DFAIT.

[39]   What matters is what was objectively done. The grievor had new duties, a new title, a new supervisor, and the new position she held was considered by the Department (Exhibit P-25) to be CO-3 starting in July 1999. The position was indeterminate, as specified by the supervisor (Exhibit P-15), it had its own position number (11042) (Exhibit P-19) and was not a temporary assignment within the rotationality system of FS positions (none of the conditions for a rotational assignment was met). In short, the grievor's substantive position was position no. 11042; it was confirmed by Line Lamarche (Exhibit P12) and she should be paid the corresponding salary.

[40]   Finally, section 34 of the PSSRA does not limit the Board's jurisdiction to the duties carried out at the time of the section 34 application and the Board can consider duties prior to the date of the application.

[41]   The employer admitted that the grievor carried out CO-3 duties starting in August 1999. The pay card (Exhibit E-1) is not potential evidence and cannot override the employer's admission that the grievor was the incumbent of a new position (no. 11042) and she should be paid the corresponding CO salary under the CO collective agreement.

[42]   The following cases were quoted: Leduc (supra), Bunka (supra), Canada (Attorney General) v. Brault, [1987]   2 S.C.R. 489 and Doré v. Canada, [1987]   2 S.C.R. 503.

[43]   The argument of counsel for the employer can be summarized as follows.

[44]   There should not be an unfavourable light cast on the employer because it has refused to pay acting pay to the grievor. Simply put, in view of the absence of an acting pay provision in the FS group collective agreement at the relevant time, the grievor was not entitled to acting pay. An adjudicator cannot "read in" an acting provision in the collective agreement; this would be a violation of the PSSRA. The grievor was treated fairly and got acting pay starting on August 30, 2000, at which point the renewed collective agreement entitled her to acting pay. The employer cannot be said to have been unfair for having applied the FS group collective agreement as it existed at the relevant time (August 1999 to August 2000). PAFSO and the employer fixed the problem on a "go forward basis" by renewing the FS group collective agreement with an acting pay provision. However, let us be fair to other FS officers who may have filed the same as the grievor.

[45]   Secondly, the employer alleged that PIPSC did not have the right to support the grievor's grievance, which related to the period from August 1999 to August 20, 2000. PAFSO is the bargaining agent that ought to have represented the grievor on this particular grievance, even if at the time the grievor filed her grievance (April 2001) she occupied a CO position and PIPSC represents incumbents of CO positions.

[46]   In addition, the Burchill v. Attorney General of Canada, [1981]   1 F.C. 109, decision should be applied and the grievor ought to be prevented from changing her grievance. What she wants is pay, and not acting pay as stated in her grievance.

[47]   Moreover, the application under section 34 has no merit. This application is intended to justify an illegal grievance. The employer does not claim that it is prejudiced by this application. Rather, it views the application as an attempt to patch up the grievance. From a wider policy point, should bargaining agents be encouraged to use an expensive process to buttress a grievance that is defective?

[48]   There is no doubt that the grievor was in the AU (CO) unit at the time she filed the application. The Board can examine the duties that she carried out from August 1999 to August 2000, but the Board is not empowered to reclassify positions retroactively: Public Service Alliance of Canada and Treasury Board (Department of National Defence) (Board file 147-2-37).

[49]   This application is an attempt by PIPSC to increase its membership.

[50]   Finally, there is nothing to remedy in the present situation. The grievor was an FS officer at the time in question on rotational duty. PIPSC does not understand this concept. Yes, the grievor carried out CO duties but as part of an FS rotational assignment and as a result of her being in an FS position.

[51]   IPC is not a legal entity, but simply the common project of two departments.

[52]   According to the evidence, the e-mail (Exhibit P-25) of Monique Séguin-Doré should not be viewed as evidence that the grievor's substantive FS position was reclassified to CO-3. Admittedly, it is difficult to explain that the grievor's name was on the "Human Resources Action Request" form (Exhibit P-15) as being the incumbent of position no. 11042. At the same time, one should consider that when her FS-01 position was reclassified retroactively to FS-02 (Exhibit P-11), the letter informing her of the reclassification addressed her as an FS-02. In the end, the weight to be given to Exhibit P-25 will have to be decided. As for George Woods, his situation was different.

[53]   Since the grievor cannot claim "acting pay", the only way she could be paid for having carried out CO duties is if she could point to a certificate of appointment to the position in which she worked at IPC. She should be able to provide a letter similar to the letter she was sent when she started to work at IC.

[54]   The following cases were quoted: Leduc (supra), Bunka (supra), Nagle (Board file 166-2-21445), Federal Government Dockyards Trades and Labour Council (Esquimalt) and Treasury Board (National Defence) (Board file 147-2-25), Janveau (Board file 166-2-30455), Canada (National Film Board) v. Coallier, [1983]   F.C.J. No. 813, Burchill (supra) and Public Service Alliance of Canada and Treasury Board (Department of National Defence) (Board file 147-2-37).

[55]   The grievor's representative replied that which follows.

[56]   PIPSC is representing a member who approached her bargaining agent on a meritorious grievance. Section 34 of the PSSRA applies to individuals as well as to groups. The grievor was not on a rotational assignment and the balance of the evidence supports the conclusion that her position was position no. 11042. The Deputy Executive Director certified (Exhibit P-19) that she was the incumbent of that position and the job description (Exhibit P-15) is mere evidence of this and links the grievor to the position. The lack of a formal certificate of appointment cannot offset the rest of the evidence.

Reasons for Decision

[57]   At the relevant time (August 1999 to August 2000), of which bargaining unit was the grievor a member (section 34 application), which collective agreement applied to her situation and what pay was she entitled to (section 92: grievance)?

[58]   In view of counsel for the employer's admission that from the very start the grievor carried out CO-3 duties, the evidence is irrefutable on that point, both parties being in agreement.

[59]   It is PIPSC that is the bargaining agent of employees carrying out those duties and it is PIPSC that has been certified by this Board to represent employees holding positions in the CO group.

[60]   Does the evidence support the conclusion that the grievor was temporarily assigned on a rotational assignment to the IPC project and the particular position held by the grievor?

[61]   On the one hand, counsel for the employer has produced an e-mail (Exhibit E-5) confirming the assignment of the grievor to IPC. The author of the e-mail did not testify. The employer did not produce evidence that the grievor was advised that the position at IPC was a rotational assignment (Chapter 4, Exhibit E-2) and counsel for the employer admitted that no document had been sent to the grievor stating that she would be on a rotational assignment.

[62]   On the other hand, there is uncontradicted evidence that IPC was a new project, in a state of flux, and that the classification of the position was unclear (more particularly Exhibit P-12, plus evidence of witnesses). There is evidence that the Deputy Executive Director (Exhibit P-15) was of the view that the grievor's unclassified position ought to be classified CO-3. It is clear that he viewed her as being the incumbent of position no. 11042 (Exhibit P-15) and, in fact, counsel for the employer admits that from the start (August 1999) the grievor carried out CO-3 duties. Moreover, this same Executive Director was informed through an e-mail dated October 5, 2000, by Monique Séguin-Doré, Human Resources, that this position (no. 11042) had been reclassified "CO-3/Rotational/Indeterminate". The author of this document did not testify, either. The word "rotational" remains unexplained.

[63]   The employer did approve a job description (position no. 11042; Exhibit P-15) stating that the position held by the grievor was position no. 11042.

[64]   Also, the Department did not indicate to the grievor in writing that she would be on an assignment at IPC for a specified period and that she would return to her substantive position at the end of the assignment (Exhibit P-23); these criteria, set out in the Public Service Commission Staffing Manual and adopted from Federal Court judgments, cannot be found in the instant case as indicia of a rotational assignment.

[65]   In my view, the balance of the evidence is that the grievor changed position when she started to work at IPC. She was not on a temporary rotational assignment. She ceased occupying an FS-2 position and she began occupying a position eventually classified CO-3, and this classification was retroactive to the date when she started to occupy said position. Therefore, she was entitled to the salary attached to the position. She was entitled to "pay" as opposed to "acting pay". The fact that she cannot point to a certificate of appointment is attributable to the employer and not to the grievor. Both parties are in agreement that the necessary paperwork relating to the description and classification of the position had still not been done at the relevant time and that the organization was in a state of flux.

[66]   The lack of proper documentation to clarify her situation at IPC, both before arriving and during the first year of her stay at IPC, are not of her own doing.

[67]   She was appointed de facto to that position; counsel for the employer admitted she carried out CO-3 duties and the lack of written appointment should not deprive her of the pay to which she is entitled.

[68]   The documentation that does exist coupled with the testimonial evidence and admissions support the conclusion that she began occupying a new position (CO-3; position no. 11042) and carried out the duties of that position. Therefore, she should be paid the CO-3 salary for that period.

[69]   The fact that she asked in her grievance for "acting pay" does not deprive her of obtaining "pay". I am satisfied that the nature of her grievance is not altered by asking for "pay" instead of "acting pay" and that Burchill (supra) is not contravened. The employer understood the nature of her grievance; i.e. that it related to the pay to which she was entitled for that period, and is not prejudiced by the fact that she is seeking the "pay" negotiated for a CO-3 position.

[70]   In conclusion, I determine under section 34 of the PSSRA that the grievor's position (no. 11042; CO-3) was included in the bargaining unit represented by PIPSC and the grievor, as the employee occupying that position, was included in that unit.

[71]   I decide that this grievance is meritorious and is granted. Therefore, the employer is ordered to pay the grievor, pursuant to clause 45.02 of the Audit, Commerce and Purchasing group collective agreement, the salary owed to her for the period from August 1999 to August 2000, as set out in Appendix "A" of the collective agreement applicable to the CO-3 position she occupied.

Marguerite-Marie Galipeau,
Deputy Chairperson

OTTAWA, September 11, 2003.

ANNEX "A"

[72]   Section 34 of the PSSRA reads as follows:

34.   Where, at any time following the determination by the Board of a group of employees to constitute a unit appropriate for collective bargaining, any question arises as to whether any employee or class of employees is or is not included therein or is included in any other unit, the Board shall, on application by the employer or any employee organization affected, determine the question.

[73]   Article 45 of the Audit, Commerce and Purchasing group collective agreement (October 29, 1999 to June 21, 2000) reads as follows:

ARTICLE 45

PAY ADMINISTRATION

45.01

Except as provided in clauses 45.01 to 45.07 inclusive, and the Notes to Appendix "A" of this Agreement, the terms and conditions governing the application of pay to employees are not affected by this Agreement.

45.02 An employee is entitled to be paid for services rendered at:

1. the pay specified in Appendix "A" for the classification of the position to which the employee is appointed, if the classification coincides with that prescribed in the employee's certificate of appointment.

   or

2. the pay specified in Appendix "A" for the classification prescribed in the employee's certificate of appointment, if that classification and the classification of the position to which the employee is appointed do not coincide.

45.03 The rates of pay set forth in Appendix "A" shall become effective on the date specified therein.

45.04 Pay Administration

When two or more of the following actions occur on the same date, namely appointment, pay increment, pay revision, the employee's rate of pay shall be calculated in the following sequence:

1. the employee shall receive his pay increment;

2. the employee's rate of pay shall be revised;

3. the employee's rate of pay on appointment shall be established in accordance with this Agreement.

45.05 Rates of Pay

1. This clause supersedes the Retroactive Remuneration Directives. Where the rates of pay set forth in Appendix "A" have an effective date prior to the date of signing of the collective agreement the following shall apply:

   1. "retroactive period" for the purpose of clauses (ii) to (v) means the period commencing on the effective date of the retroactive upward revision in rates of pay and ending on the day the collective agreement is signed or when an arbitral award is rendered therefore;

   2. a retroactive upward revision in rates of pay shall apply to employees, former employees or in case of death the estates of former employees, who were employees in the bargaining unit during the retroactive period;

   3. rates of pay shall be paid in an amount equal to what would have been paid had the collective agreement been signed or an arbitral award rendered therefore on the effective date of the revision in rates of pay;

   4. in order for former employees, or in the case of death for the former employees' representatives, to receive payment in accordance with clause (iii), the Employer shall notify by registered mail, such individuals at their last known address that they have thirty (30) days from the date of receipt of the registered letter to request in writing such payment after which time any obligation upon the Employer to provide payment ceases;

   5. no payment nor modification shall be made pursuant to clause 45.05 for one dollar ($1.00) or less.

45.06 This Article is subject to the Memorandum of Understanding signed by the Employer and the Professional Institute of the Public Service of Canada dated July 21, 1982 in respect of red-circled employees.

45.07 Acting Pay

When an employee is required by the Employer to substantially perform the duties of a higher classification level on an acting basis for four (4) consecutive working days, the employee shall be paid acting pay calculated from the date on which he commenced to act as if he had been appointed to that higher classification level for the period in which he acts.

When a day designated as a paid holiday occurs during the qualifying period, the holiday shall be considered as a day worked for the purpose of the qualifying period.